Mar 2, 2010

Gun Day

Just Where Does The Second Amendment Reach?

Just two years ago, the Supreme Court struck down parts of the District of Columbia’s gun-control law. That ruling took the steam out of many gun control activist's sails - and ended that discussion on the campaign trail. Only Richie Daley had the nerve to yell 'na-uh! Not in my town!' Even thought other municipalities around Chicagoland immediately dropped their rediculous handgun bans. So, today, the court will consider Daley's argument, and whether the Constitution should apply everywhere in the country, or just in the federal territory of the nation’s capital, which, it seems, there is some doubt. For some reason.

The 2008 decision, which took an expansive and aggressive view of the right to bear arms and all but destroyed the argument for commas and what a militia is, and why Americans should have guns - but it was only applied to DC. Now they have to go back and attack the loose ends. Now they have to apply the Constitution to states and cities. It should make clear whether all of the protections of the Bill of Rights apply everywhere - or just the District of Columbia.

McDonald v. Chicago challenges a law that makes it extremely difficult to own a handgun within Chicago’s city limits. I feel it is important to note that Mr. McDonald is an African American who is fighting to defend himself against the bangers who sit on his corner slinging crack to his neighborhood. He's defending himself with his legally obtained handgun. Mayor Daley doesn't think so. McDonald and the NRA are relying on the court’s 5-to-4 ruling in 2008, which recognized an individual right under the Second Amendment to carry guns for self-defense. But that decision left open an important question. The Bill of Rights once was largely thought to be a set of limitations on the federal government. Does the right to bear arms apply against city and state governments as well? I guess we're going to finally find out?

Since states and localities do far more gun regulation than the federal government, the court’s answer will have a powerful impact. The United States Court of Appeals for the Seventh Circuit, in Chicago, relying on 19th-century precedents, ruled that the Second Amendment does not apply to states and cities. So, I wonder if cities and states can just legislate away the first amendment too?

Under the doctrine of “selective incorporation,” the Supreme Court has ruled on a case-by-case basis that most, but so far not quite all, of the Bill of Rights applies to states and cities. The court should dispense with the selectivity and make clear that states and cities must respect the Bill of Rights. If they don't, Miranda rights can be selectively taken away (except for terrorist suspects, I suppose?) and how about that free press we all seem to enjoy in the states and cities. Why would it be assumed that only in the case of handguns would any ruling against the 2nd Amendment not have the unintended consequence of a cascading destruction of the American Bill of Rights?

The court has relied on the 14th Amendment, which was enacted after the Civil War to ensure equality for newly freed slaves. The amendment has two relevant clauses: the due process clause that requires government to act with proper respect for the law, and the privileges or immunities clause, which is more focused on protecting substantive individual rights.

I doubt that the court will tackle the gun issue directly, however, if it decides to apply the Second Amendment to cities, it would probably send the case back to a lower court to evaluate the Chicago law. If that happens, the justices could make a bread trail to explain how to keep gun restrictions, in a semi-Constitutional manner.

Luckily, the Supreme Court’s conservative majority has made clear that it is very concerned about the right to bear arms. So there's still Hope.